EPA Suspends Chemical Reporting

5/17/2011

On May 11, the U.S. Environmental Protection Agency (EPA) suspended the next submission period for the Toxic Substances Control Act's (TSCA) Inventory Update Reporting (IUR). The IUR is an inventory of chemical substances in commerce in the United States. The suspension came a month after the agency received complaints from House Republicans and the chemical industry about difficulties complying with new reporting requirements.

The IUR enables the EPA to collect and then make public critical information on the production, processing, importation, and use of certain chemicals. As previously reported in The Watcher, "[T]he IUR provides exposure-related data needed to understand chemical risks – information that is vital to identifying chemical risks to the public and environmental health and crafting regulations to protect them."

Currently, the IUR rule requires companies to file a report every five years for each chemical on the TSCA Inventory that they manufacture, process, or import, including basic information on the chemical's usage. The EPA issued a final rule, with no previous notice or opportunity for public comment, which suspended the next reporting submission period, scheduled between June and September. The information that would have been reported would have included data from the previous five-year period, 2006 to 2010.

In 2010, the EPA proposed many changes to its IUR rule that would increase the information required to be reported, the frequency of reporting, and the number of companies that would have to file an IUR report. The agency, which had last amended the IUR rules in 2003, proposed returning to many of the pre-2003 standards. For example, the 2010 proposed rule included returning the reporting frequency from the current five-year cycle to every four years. It would have also reestablished the previous reporting threshold, dropping it from the current 25,000 pounds back to the original threshold of 10,000 pounds. The proposed changes would have gone into effect for the 2011 submission period.

However, the announced suspension means that, for the time being, companies are not going to submit any chemical information. The EPA sent the Draft IUR Final Rule to the Office of Management and Budget (OMB) on Jan. 20, and OMB held at least six meetings on the rule (five with industry representatives and only one with environmental and public health groups). The suspension of the next submission period, according to the EPA, is to allow additional time to finalize the proposed changes to the IUR. The agency also stated that delay was "to avoid finalizing changes to the reporting requirements in the midst of the 2011 submission period."

Interestingly, the EPA noted that the reporting delay addressed concerns raised by chemical companies regarding the short time span between the final modification rule and the next submission period. On March 4, representatives from the American Petroleum Institute, Conoco Phillips, Occidental Petroleum, and ExxonMobil presented their concerns on the Draft IUR Modifications Rule to the EPA, including that the current 2011 submission deadline is unrealistic and should be extended because the proposed modifications have not yet been finalized. Richard Denison and Allison Tracy of the Environmental Defense Fund have provided detailed explanations of industry's complaints on the proposed changes.

The EPA's announcement also comes a month after House Energy and Commerce Committee leaders urged OMB to withdraw the EPA's proposed changes to the IUR. In a letter sent to OMB Director Jacob Lew on April 4, Energy and Commerce Committee Chairman Fred Upton (R-MI) and Environment and the Economy Subcommittee Chairman John Shimkus (R-IL) argued that the proposed rule fails to meet the requirements of the Paperwork Reduction Act and President Obama's Executive Order 13563 and "introduces needless burdens on the U.S. economy."

EPA's plans to finalize the proposed changes and to resume the chemical reporting requirement are unclear. The latest announcement states that the suspension is in effect until the IUR rule changes are finalized. However, there is no firm date for either the changes to be finalized or the suspension to be lifted. The agency acknowledged comments received from a coalition of environmental and public health advocates, including OMB Watch, but stated that it cannot respond to questions "about the appropriate timing for implementing the modifications until the modifications have been finalized."

The EPA's announcement was well received among industry representatives, but public interest groups highlighted the problems with the decision, especially on public health grounds.

Matt Shudtz of the Center for Progressive Reform said, "OMB continues to be a sluice gate to health and safety regulation, and it seems like industry's holding the controls. The public's health – in the form of protection from toxic chemicals – pays the price."